Three Wisconsin prosecutors have laid out their case for the U.S. Supreme Court to review the state Supreme Court's decision to halt an investigation into whether Gov. Scott Walker's recall campaign broke the law and coordinated with outside advocacy groups.
The heavily redacted petition (see attached PDF), known as a "writ of certiorari," was submitted to the nation's highest court Thursday by Milwaukee County District Attorney John Chisholm, Dane County District Attorney Ismael Ozanne and Iowa County District Attorney Larry Nelson. The petition centers around two key legal questions: under what circumstances must a judge remove himself or herself from a case, and what is the extent of First Amendment rights in funding campaigns and coordinating between a candidate and an advocacy group.
The prosecutors say the state Supreme Court’s July 2015 decision to halt the investigation that centered around whether Walker and conservative groups, including Wisconsin Club for Growth and the lobbying arm of Wisconsin Manufacturers & Commerce, conflicts with the federal high court's past rulings. The petition also highlights how both Justice David Prosser and Michael Gableman should have removed themselves from ruling on the case because their campaigns benefited from money spent by the conservative groups.
The petition outlines how, during Walker's contentious recall, political operatives from both the campaign and third party groups exchanged emails and coordinated fundraising. Correspondence shows how the operatives would determine whether money received would be deposited into a campaign account or an undisclosed third party account, the petition states.
"Secret contributors received special favors," Chisholm and the prosecutors note. They cite John Menard, the billionaire owner of Menards home improvement stores, as a key beneficiary, along with Gogebic Taconite, the company that was trying to build an iron ore mine in the state and a $700,000 donor to the Wisconsin Club for Growth. Walker and legislative Republicans later eased environmental regulations on mining.
"Indeed this case represents the most extreme form of coordination conduct," the prosecutors wrote. "The candidate's key principals were one and the same with the third party, 501(c)."
The petition heavily blacks out parts related to Justice David Prosser's 2011 campaign, in which he benefited from both public campaign financing and the support of a third party advocacy group. To qualify for $400,000 in public spending, Prosser was required to raise 1,000 "small dollar" donations.
The prosecutors cite a conference call, in which people discuss how to get the small donors Prosser needs to collect his public campaign money.
"We need to do a quick conference call at 2 p.m. tomorrow to discuss the Prosser race and his need for 1,000 low dollar donors by year end," the brief states, with names redacted. Prosser has said that the call occurred before his campaign hired a manager.
The case raises serious questions about recusal, said Richard Hasen, a campaign finance expert and professor of law and political science at the University of California Irvine, School of Law.
"The justices are so enmeshed in this very campaign finance scheme, it's hard to see how anyone from the outside could think anything but their ability to decide the case dispassionately is called into question," he said.
The outcome of the case, along with the campaign finance and conflict of interest issues it stokes, are being watched nationwide, Hasen said.
The U.S. Supreme Court takes on less than 1 percent of the thousands of cases it gets each year.
"(It) has a high national profile which will certainly get it a serious look by the justices," he said. "I think it raised a very meaty question, one on the substance of campaign finance law and the other the subject of judicial recusal and judicial ethics."
The prosecutors who say their "appellate experience is limited to traffic and misdemeanor matters in the state court of appeals" also note how the Wisconsin Supreme Court barred the prosecutors from accepting free help to prepare the brief from Reed Smith, a law firm with experience preparing petitions to the U.S. Supreme Court.
It can take a few months or more than a year for the court to determine whether to take a case. In making a decision, it considers to what degree there is a conflict between courts, there is an important federal question in play, or other important legal questions that have not been addressed.